Karnataka High Court
Sri B R Shivakumar Singh vs State Of Karnataka on 30 August, 2013
Bench: Chief Justice, B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30th DAY OF AUGUST 2013
PRESENT
THE HON' BLE MR.D.H.WAGHELA, CHIEF JUSTICE
AND
THE HON' BLE MRS.JUSTICE B.V.NAGARATHNA
WP NO.22126/2013(GM-MMS)
BETWEEN
SRI.B.R.SHIVAKUMAR SINGH
S/O.LATE B.K.RAGHUNATH SINGH
AGED 75 YEARS
NO.362/1, 50 FEET ROAD
HANUMANTHANAGAR
BANGALORE-560 019
... PETITIONER
(BY SRI.SUBRAMANYA R, ADV., FOR
M/S.ASHOK HARANAHALLI ASSTS.,)
AND
1. STATE OF KARNATAKA
DEPARTMENT OF COMMERCE & INDUSTRIES
VIKASA SOUDHA, DR.AMBEDKAR VEEDHI
BANGALORE-560 001
REPRESENTED BY ITS SECRETARY
2. THE DIRECTOR
DEPARTMENT OF MINES & GEOLOGY
KANIJA BHAVAN, RACE COURSE ROAD
BANGALORE-560 001
3. THE DEPUTY DIRECTOR
DEPARTMENT OF MINES & GEOLOGY
TUMKUR-572 120
TUMKUR DISTRICT
... RESPONDENTS
(BY SRI.R.G.KOLLE, AGA)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUION OF INDIA PRAYING TO
QUASH THE ORDER PASSED BY RESPONDENT NO.2-
DIRECTOR OF MINES & GEOLOGY DATED 05.11.2002 VIDE
ANNEXURE-A AND DIRECT THE RESPONDENTS TO GRANT
PROSPECTING LICENSE FOR WHITE CLAY TO AN EXTENT OF
88 ACRES IN SURVEY NO.28 OF YAREKATTE,
CHIKKANAYAKANAHALLI TALUK, TUMKUR DISTRICT
PURSUANT TO THE RECOMMENDATION DATED 02.04.2008 OF
RESPONDENT NO.3 VIDE ANNEXURES-F & G.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER
D.H.WAGHELA, C.J. (Oral) :
1. This is the fourth round of litigation initiated by the petitioner for achieving the same purpose of securing a prospecting license from the Director of Mines and Geology, with the prayer to issue a writ of mandamus directing the respondents to grant prospecting license for white clay on an area of 88 acres of land in Sy.No.28 of Yarekatte, Chikkanayakanahalli Taluk, Tumkur District, pursuant to the so-called recommendation dated 02.04.2008 of the Deputy Director, Department of Mines and Geology. The order impugned in the present petition is the latest order dated 05.11.2012 of the Director of Mines and Geology rejecting the application dated 23.07.1993 of the petitioner.-3-
2. There is no dispute about the facts that the petitioner applied for prospecting license for white clay on 23.07.1993, pursuant to which, the Deputy Commissioner, vide his letter dated 06.10.1994, reported that the area applied by the applicant is "forest land" as per the record, and also that there is Sree Thirtharameswara Temple situated at a distance of about 0.05 KM, due to which there were objections from the public and villagers. Upon not getting the prospecting license on such grounds, the petitioner filed his first petition being WP No.25021/2004, which was disposed with the direction to the respondents to dispose of the application within three months. Therefore, the Deputy Commissioner, Tumkur was required again to re-examine the matter. However, vide letter dated 22.03.2005, the same opinion was reiterated as in the letter dated 06.10.1994. A notice under Rule 12 (1) of Mineral Concession Rules, 1960 (for short 'the MC Rules') was issued to the petitioner to furnish his reply as to why action should not be taken to reject his application. But, the petitioner had filed a case for contempt of court, which was disposed in view of the order made by the respondents. The petitioner again represented with a reply dated 05.05.2005 stating that the area applied for prospecting was away from the temple and no -4- hindrance would be caused to the public if the license were granted. He again filed a fresh petition in the form of WP No.4476/2006 for a writ of mandamus and it was disposed with a direction to the respondents to consider the petitioner's application, as well as his reply to the show cause notice, within a period of three months. Pursuant to that direction, a response was called from the Deputy Conservator of Forest, Tumkur and the report was that the applied area belonged to Sree Thirtharameswara Temple Reserved Forest area. According to the provisions of Section 2 of the Forest (Conservation) Act, 1980 (for short 'the FC Act'), the applicant was required to obtain necessary clearance before entering into the forest area. The petitioner was informed to approach the Chief Conservator of Forest, Bangalore in that regard.
3. On further verification of the Technical Report dated 02.04.2009 of the Deputy Director, Tumkur, it was reported that "Due to soil and vegetative cover details, surface indications of white clay could not be seen. Iron, Floats, Dolomite are observed in the applied area." It was further observed that the same applicant had another mining lease which was adjacent to the land in question, which had been -5- sanctioned for Iron-ore and Manganese under ML 2319 and that lease was transferred to some other Company. The applicant had also given General Power of Attorney to some other person by name Sri. N.S.Ganesh, Earth Mining Company. The area was a proven area for Iron and Manganese and surrounded by many mining leases for Iron- ore and Manganese. Therefore, the applicant could have applied for mining lease directly for the said minerals. Instead of that, the petitioner had applied for prospecting license for white clay, which was also not available as per the Report of the Technical Officer. It showed that the petitioner did not have any intention to mine white clay in the area and the idea behind applying for prospecting license for white clay was only to eventually have the mining lease for Iron-ore and Manganese. Accordingly, the application of the petitioner was rejected on 24.06.2010 and aggrieved by that order, the petitioner again approached this Court by way of WP No.35587/2010, which was again disposed by an order to make an order on the original application dated 23.07.1993, of the petitioner. Again, after affording to the petitioner an opportunity of hearing, the impugned order was made on 05.11.2012.
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4. None of the facts mentioned hereinabove and made the basis of the impugned order are disputed. The only ground sought to be canvassed by learned counsel Mr. Subramanya R was that, under the provisions of Rule 12 of the MC Rules, the application of the petitioner could not have been rejected, insofar as the grounds mentioned in the impugned order are not the grounds enumerated in Rule 12(2) of MC Rules. He relied upon the following provisions of Rule 12;
" 12. Refusal of application for a prospecting license.- (1) The State Government may, after giving an opportunity of being heard and for reasons to be recorded in writing and communicated to the applicant, refuse to grant or renew a prospecting license over the whole or part of the area applied for.
(1A) ... ... ... ...
(1B) ... ... ... ...
(2). An application for the grant of a prospecting license shall not be refused on the ground only that, in the opinion of the State Government, a mining lease should be granted for the area for which the application for a prospecting license has been made:
Provided ... ..."-7-
5. It was contended in the above context by learned counsel for the petitioner that the land in question was transferred to the Forest Department way-back in the year 1994 by a notification dated 20.07.1994, but the final notification under Section 17 of the Karnataka Forest Act has yet not been issued. As for reference to the provisions of the FC Act, there was no reply or contention against the relevant restrictive provision of Section 2 of the FC Act, which reads as under;
" 2. Restriction on the dereservation of forests or use of forest land for non-forest purpose.- Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with prior approval of the Central Government, any order directing, -
(i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any non-forest purpose;
(iii) ..................
(iv) ... ... ... ... ..."
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Although the words "forest land" are not defined in the Karnataka Forest Act, 1963, "District Forest" is defined to include all land at the disposal of Government not included within the limits of any reserved or village forest nor assigned at the survey settlement as free grazing ground or for any other public or communal purposes. Having regard to the scheme of the FC Act, once a notification is issued under Section 4 thereof, the land sought to be declared as reserved forest by the State Government is subject to certain legal and procedural mandates, even in the absence of a declaration under Section 17 of the said Act.
6. A perusal of the impugned order at Annexure-A makes it clear that the Deputy Commissioner by his letter dated 06.10.1994 had reported that the area applied for is a forest land as per the records and that there is Sree Thirtharameswara Temple situated at a distance of about 0.05 KM, also the villagers had objected for grant of any license or lease in respect of the area in question. In view of these facts, the Deputy Commissioner had recommended that no sanction for any license or lease could be granted for the area applied for by the petitioner. The Deputy Commissioner by -9- his letter dated 22.03.2005 has reiterated the same opinion given in the earlier letter. Under these circumstances, a notice under Rule 12(1) of the MC Rules had been issued to the petitioner to furnish his reply as to why his application seeking prospective license should not be rejected. Subsequently, the Deputy Conservator of Forest, Tumkur, by his letter dated 07.01.2008 has reported that the area in question belongs to Sree Thirtharameswara Temple reserved forest, and therefore, the clearances under the FC Act have to be obtained by the applicant/petitioner and in that regard he could contact the Principal Chief Conservator of Forest, Bangalore. From the impugned order itself it is noted that the petitioner did not approach the Forest Department with regard to the clearances to be obtained under the FC Act.
7. Thus, in short, without reference to the provisions of the Forest (Conservation) Act and without any positive opinion from the Forest Department, the petitioner appears to have been pressing his application repeatedly and only on technical grounds for grant of prospecting license, while even his credentials as a genuine applicant for prospecting license were palpably doubtful. The provisions of Rule 12 of MC Rules
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clearly empower the Government to refuse the grant of prospecting license, after giving an opportunity of hearing and for reasons to be recorded in writing which need to be communicated to the applicant. This exercise appears to have been carried out more than once in the case of the petitioner, and the grounds mentioned in the impugned order are in no way irrelevant or impermissible for refusing the license. Instead, it appears that the petitioner has been pursuing the same application, rejected several times, since the year 1993, for the grant of license without any bonafide cause of action or purpose. It is obvious from the record that the respondents have been repeatedly forced to examine the application of the petitioner under orders of the Court and the process of this Court has been repeatedly abused by the petitioner on one or the other technical grounds so as to keep the application alive even after twenty years.
8. The Technical Report of the Deputy Director, Tumkur dated 02.04.2008 has also not been assailed by the petitioner. The said Report states that the area applied for does not contain white clay but deposits of Iron, Floats and Dolomite was observed. It is also stated that the area applied for by
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the petitioner is a 'proven area' for Iron Ore and Manganese and that the petitioner could have applied directly for a mining lease of those minerals, instead the petitioner had applied for a prospective license for white clay, which is not available as per the Report of the Technical Officer, Tumkur. The impugned order shows that the intention of the petitioner is to apply for prospective license for white clay only and seek a back-door entry to obtain the mining lease for Iron Ore and Manganese. It is under these circumstances that the petitioner's application seeking prospective license has been rejected. The petitioner is unable to state that these factual aspects are incorrect. Instead for over two decades the petitioner has been making all attempts to seek a prospective license which has not been granted by the Department due to the reasons stated in the impugned order. Infact, the Department has been consistently citing the very same reasons for rejecting the petitioner's application. But the petitioner has been attempting to pursue the said application which has been rejected several times by repeatedly approaching this Court on one ground or the other. In the present Writ Petition, we find that the reasons sought to be given by the petitioner for assailing the impugned order are unsustainable.
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9. Therefore, the present petition, in the peculiar circumstances summarized hereinabove, is dismissed with exemplary cost quantified at `.1 lakh, which shall be paid by the petitioner to respondent No.1, within a period of one month from today.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE mv